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Listen to: Estate Planning and Assisted Human Reproduction

This week on Hull on Estates, Kathryn Pilkington and Paul Trudelle discuss an article written by Clare Burns, with assistance from Anastasija Sumakova,  entitled "Mission Impossible: Estate Planning and Assisted Human Reproduction", and the numerous estate planning issues that arise from assisted human reproduction.

If you have any comments, send us and email at hull.lawyers@gmail.com or leave a comment on out blog.

Paul E. Trudelle - Click here for more information on Paul Trudelle.

Kathryn Pilkington – Click here for more information on Kathryn Pilkington.
 

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Chinese real-estate tycoon, Yu Pengnian, announced this past April that he was donating the last $500 million of his fortune to his charitable foundation on philanthropy. He was asked by a reporter, whether his children were angry about his donations and responded by stating: “They didn’t oppose this idea, at least not in public.”

|It is not uncommon for billionaires to donate their fortune. For instance, Warren Buffet and Bill Gates started a campaign called "The Giving Pledge." At that time, they had four billionaires pledge to give away half of their fortune upon their death.  Now there are 40. My colleague, Nadia Harasymowycz, recently blogged on this topic, which can be found here: Leaving it all to Charity – A Good Plan or an Estate Litigator’s dream.

The idea of giving away your fortune is a strong shift from the traditional idea of passing down your wealth, from generation to generation. Why this switch in estate planning? Yu stated: “If my children are competent, they don’t need my money. If they’re not, leaving them a lot of money is only doing them harm.”

Yu’s message to wealthy families put simply: “Too many wealthy parents focus on preventing their children from failing. But in doing so, they also deprive their children of the joys of self-made success.”

Thank you for reading,

Rick Bickhram - Click here for more information on Rick Bickhram.

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Over the weekend, I was reading some international publications, when I came across a rather interesting article in The New York Times about Ben Novack Jr., and his Batman collection.  Novack is said to have the second largest, Batman themed collection, in the country.  To give you an idea of how big this collection is, Novack is said to have a full-size replica of the Batmobile!

About one year ago, Novack was found murdered at a hotel in New York, where he was staying with his wife.  The hotel records showed that no one had entered the hotel room with a key before the killing of Novack.  Novack's wife reported to the police that "she went down to breakfast about 7 a.m., leaving him asleep. When she returned 40 minutes later, she said, she found him bound and bloody on the floor."  Given the hotel records, and other circumstantial evidence, the police did not believe Novack's wife. 

It is reported that her goal was to seize control of Novack's fortune.  How much was his estate worth? $5-6 million dollars! 

Earlier this year in February, a Florida judge named Ms. Novack as the personal representative of Novack's estate before reversing the decision three days later. He ordered her to post a high bond before becoming personal representative, but Novack's wife never posted the bond.

The article does not mention whether Ms. Novack was convicted with the murder of her husband, however, in Ontario the Forfeiture Rule is well founded law for beneficiaries who perpetrate a criminal act against the testator.  The Forfeiture Rule was quoted in Re Benson Estate,  "A sane person who commits murder is debarred by public policy from taking any benefit under the Will or intestacy of his victim."

Thank you for reading,

Rick Bickhram - Click here for more information on Rick Bickhram.
 

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When I read a recent article about Mr. Butler, an unemployed Ottawa man who had been cashing his father’s government pension cheques for seven years after his death (totaling about $115,000), I couldn’t help but get just a little annoyed.  Reportedly, he spent most of it at strip clubs - another irritating fact!

How this apparently happened was that after his father’s death, his pension cheques continued to be directly deposited into their joint bank account.  The bank was never notified of the death. Mr. Butler asserts that he had assumed the payments were either government child benefits or survivor benefits (interesting twist given that his father was reportedly a longtime accountant for the federal government).  

While Mr. Butler pleaded guilty to the fraud (and was placed under house arrest for a year), he filed for bankruptcy to avoid paying the restitution Order obtained. Unfortunately, the money will never be reimbursed. Ironically, Mr. Butler turned 65 during his house arrest and started collecting a pension himself. 

I fear this type of thing happens much more often then one would expect, although likely on a smaller scale. I wonder if in cases such as this whether the government has ever sought restitution by garnishing pension funds (or getting the Court’s authority to do so, if needed)? I can appreciate at least two sides to this question – I suppose when there is an unwitting recipient of government funds, taking part or all of their pension away could be seen as a harsh result. That said, receiving thousands of dollars in tax-payers hard-earned money with impunity (albeit innocently) is arguably unfair to the public.  If any practitioner in the area knows the answer to this question I would be happy to hear from him/her. 

Have a great weekend! 

Natalia R. Angelini - Click here for more information on Natalia Angelini.

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The August 13, 2010 edition of Lawyers Weekly featured an article by Kimberly Whaley with the above-captioned title. The article dealt with the relationship between marriage, property, and estates and the resulting risk of predatory marriages.

I think it’s safe to presume that the majority of people believe that once they have executed a Will, their carefully considered estate plans are locked in. However, the provisions people make for their loved ones upon their death are not exactly locked in. According to Ontario law, marriage automatically revokes a Will.

While shocking for many people, there are ways to avoid this unwanted consequence of marriage. For instance, where a person executes a Will in contemplation of marriage, his or her testamentary plans will survive the marriage.

The automatic revocation of a Will can lead to unfortunate and unintended results, particularly when individuals have capacity to marry, but lack the capacity to manage property and/or execute a Will. In such circumstances, a person who lacks testamentary capacity may end up the target of a greedy opportunist looking to marry for money.

In Ontario, where a person’s Will is revoked upon her marriage and she dies, her estate is distributed under succession law as if she died without a Will. According to the Succession Law Reform Act (“SLRA”), when the deceased, who dies intestate, is survived by a spouse and there are no issue, the surviving spouse takes all property of the deceased’s absolutely. Where the deceased dies with a net value of more than the “preferential share” and with a surviving spouse and issue, the surviving spouse is entitled to the preferential share, being $200,000, absolutely. After the preferential share is distributed to the surviving spouse, the surviving spouse is entitled to a distributive share, which varies with the number of children or issue surviving. If, for example, there is a surviving spouse and one child, the excess above and beyond the $200,000 is allocated equally between the spouse and the child. Where there is a surviving spouse and more than one child, the spouse is entitled to a third of the excess and the remainder is divided equally between the children. 

The scenario that immediately comes to mind is one where an elderly and frail individual is preyed upon by a younger person who sees the marriage as an opportunity to abscond with the property of the elderly spouse who lacks capacity to manage property during his/her life or execute a Will.

In my next blog, on September 6, 2010, I discuss this topic in more detail, focusing on why predatory marriages are, perhaps, too easily accomplished.  

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Listen to: Estate Administration - Part 2

This week on Hull on Estates and Succession Planning, Ian and Suzana continue their discussion on estate administration. Specifically, they examine what would happen if one did not have an affidavit of execution during an estate administration.   
 

If you have any comments, send us an email at hullandhull@gmail.com or leave a comment on our blog.
 

Ian M. Hull – Click here for more information on Ian Hull.
 

Suzana Popovic-Montag – Click here for more information on Suzana Popovic-Montag.

 

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Just when I thought I’d seen it all, I came across this blog about a Coffin Academy in South Korea that offers a motivational program seeking to inspire people to lead more fulfilling lives by simulating death.  This is an interesting concept given that South Korea apparently has the highest suicide rate in the developed world. 

It is reported that for under $50.00 you can experience death with all the trimmings - a photo shoot, a lecture on living life to its fullest, an opportunity to decorate your tombstone, write a Will and say your goodbyes.   Then, in a candlelit chapel, with your portrait on a flowery altar, you climb into a coffin wearing a yellow “death” robe, where you lay for several minutes…contemplating.

Reportedly, the academy has become something of a retreat, where people come to rejuvenate.  Many firms apparently see the sessions as an inventive way to stimulate productivity for their staff. That said, some critics worry that the fake funerals glamorize death and may lead to an increase in suicides.

Whatever the result, this is certainly something I would pass on. I can feel the walls closing in on me just thinking about it!

Thanks for reading and have a good day,

Natalia R. Angelini - Click here for more information on Natalia Angelini.

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Listen to: Estate Distribution

This week on Hull on Estates, Suzana Popovic-Montag and Ian Hull discuss how estates are distributed and what the priorities in estate distribution are.
 

If you have any comments, send us an email at hull.laywers@gmail or leave a comment on our blog.
 

Suzana Popovic-Montag – Click here for more information on Suzana Popvic-Montag.

Ian M. Hull – Click here for more information on Ian Hull.
 

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You may recall that not long ago Kathryn Pilkington and I podcasted about assisted suicide and the defeated bill entitled the Right to Die with Dignity Act, which sought to legalize death assistance beyond terminal illness to include assistance to individuals who are experiencing debilitating physical or mental pain.

Most recently this subject was considered in The Lawyers Weekly by Mary Shariff. She speaks to the connection between suffering and the desire for death, and goes on assert that research has shown when integrated palliative care (care that addresses physical, psychological, emotional and existential suffering) is provided, requests for assisted suicide are frequently altered. 

The headway in palliative care initiatives Canada is making is referenced, although so is the fact that palliative care is not insured care under the Canada Health Act, such that its delivery falls to provincial discretion. In short, not all dying Canadians are getting equal access to such care.  

Ms. Shariff boldly describes the real risk that true consent to assisted suicide at the end of life may not be achieved if the individual does not have a meaningful choice about how to alleviate his/her suffering. This article is thought-provoking and asserts that regardless of which side of the debate one sits on regarding assisted suicide, the obligation to put the palliative care delivery agenda in the forefront is arguably legally required in order to meet our international commitments, which commitments recognize the right of everyone to the enjoyment of “the highest attainable standard of physical and mental health”.  

I find this argument compelling, and would like to see a growing focus on this topic that with our aging population will undeniably become more and more relevant.

Thanks for reading and have a good day,

Natalia R. Angelini - Click here for more information on Natalia Angelini.

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In Laidlaw Estate, Re, a recent decision of the Court of Queen’s Bench of Alberta, the court considered an application for a grant of probate in respect of a Will containing handwritten changes.

The key facts are that the Deceased executed a typewritten Will made with the assistance of a lawyer. Changes were later made to the Will gifting a Bond to certain beneficiaries, consisting of handwritten words and numbers.  The Testator signed the handwritten changes.  There were no witnesses to the handwritten changes made to the Will. 

Testimony was given that the signature at end of changes appeared to be testator’s usual signature. Interestingly, the handwritten changes contained er­rors in spelling of the beneficiary names (although this was also the case in the Will as the Testator apparently suffered from dyslexia, which explained the mistakes).

The Court granted the probate application, and in so doing, it found that the handwritten changes could be understood independently of the typed text, such that they were found to constitute a valid holograph Codicil to the original Will. In coming to its decision the Court was guided by its stated policy to do everything possible to give effect to testamentary writings in holograph form. 

While this is an Alberta case, the applicable legislation is similar to ours, and it makes for an interesting read.  

Have a good day,

Natalia R. Angelini - Click here for more information on Natalia Angelini.

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For my final blog for the week, I want to discuss an article recently featured in Forbes.com, which considers the importance of having a Will. 

If an individual dies without a Will, he is said to have died intestate. When a person dies intestate, their assets are distributed pursuant to the intestate provisions contained in the Succession Law Reform Act.

If a person dies with a Will, he is said to have died testate. In such circumstances, the deceased’s assets are distributed in accordance with his last wishes as set out under his Last Will and Testament.

Under Glenn Curtis’s article, “Why You Should Draft a Will” he sets out the benefits of having a Will, such as:

1.                  Limiting family disputes;

2.                  Wills can outline personal preferences; and

3.                  Wills make quantifying and distributing assets easier.

By comparison, Curtis argues that not having a Will could place significant burdens on loved ones, such as it could take a very long time to compile an accurate list of an individual's assets; it could also take a prolonged period of time to identify and locate potential beneficiaries. “Unfortunately, until this process is complete, money may not be distributed, even to legitimate and known beneficiaries.”

Curtis concludes his article with some wise words: “Individuals seeking to prevent family infighting, and who want to ensure that their spouses, children and other relatives are properly taken care of after they die would be wise to consider drafting a will.”

Thank you for reading, and I hope you have a great weekend,

Rick Bickhram -  Click here for more information on Rick Bickhram.

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Social Media is not a fad and is fundamentally changing the ways we interact and communicate with others.  Two of the more popular social networking websites, Twitter and Facebook, recently implemented policies that set out guidelines regarding a user’s account once they have died.

Under Twitter’s policy, a person can either request that the deceased user’s account be removed entirely or receive an archive of all the deceased user’s tweets offline once they have provided Twitter with the following information:

1.                  Your full name, contact information (including e-mail address), and your relationship to the deceased user; 

 2.                  The username of the Twitter account, or a link to the profile page of the Twitter account.  

 3.                  A link to a public obituary or news article.

By comparison, Facebook provides two options: either removing the deceased’s account, or "memorializing" it.

Memorializing a person’s account “means the account lives on in Facebook's system, and other Facebook members can interact with the deceased member's wall. What’s interesting about what Facebook put into place, compared to Twitter, is that there’s still a great deal of emphasis put on privacy and what can be done with the information that user has posted to the service. For instance, only that user's friends can still visit the profile or find it in Facebook's public search tool. And Facebook goes so far as to remove all status updates and contact information.”

It is hard to imagine that Facebook and Twitter will remain an important part of our lives many years from now, but Facebook has grown from 300 million to 500 million users in less than a year, with few signs of that slowing down. This is an indication that “policies about a user's death can end up being just as important as those you agree to when you first sign up.”

Thank you for reading, and have a great day.
 

Rick Bickhram - Click here for more information on Rick Bickhram.

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Listen to: Fundamentals of Estate Administration

This week on Hull on Estates and Succession Planning Ian Hull and Suzana Popovic-Montag discuss the process of personal estate administration and what to expect.

If you have any comments, send us an email at hullandhull@gmail.com or leave a comment on out blog.

 Ian M. Hull - Click here for more information on Ian Hull.

Suzana Popovic-Montag - Click here for more information on Suzana Popovic-Montag.

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Bridging the gap between principle and common sense can be tough for parties involved in litigation.  

World renowned pop artist, Michael Jackson, died over one year ago on June 25, 2009.  As with most estate disputes, they tend to be costly both emotionally and financially, and this tends to be the focus of everyone watching, despite all the good deeds that one may have accomplished during his or her lifetime.

Over the past year, we have heard of issues surrounding the Guardianship of Michael's children, his mother Katherine Jackson's fight to be appointed as the executor for Michael's estate, and illegitimate children coming out of the woodwork claiming to be dependants of Michael.

Most recently, in an entertainment column published by TVNZ, Michael's father, Joe Jackson, has decided to appeal a court decision indicating that he had no right to object to the executors of his son's will.  

Joe Jackson initially accused the executors of Michael's estate, John Branca and John McClain, of fraud and embezzlement.  As Joe Jackson was not a beneficiary of Michael's estate, the court held that he was unable to object to the executors of his son's will.

Joe Jackson's lawyers now argue that Joe was financially dependent on Michael and should therefore have a right to object to the appointment of the executors who control the financial decisions of Michael's estate.  These claims of dependency are being refuted by the lawyer for Michael's children.

As I indicated above, bridging the gap between principle and common sense can be tough for parties involved in litigation.  Is this the legacy that Michael Jackson would have wanted to leave when he died?

Thank you for reading,

Rick Bickhram - Click here for more information on Rick Bickhram.

 

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Listen to: Morgan (Estate) v. Morgan, 2010 BCCA 299

This week on Hull on Estates, Paul Trudelle and Rick Bickhram discuss the case of Morgan (Estate) v. Morgan out of the British Columbia Court of Appeal. The issues examined are timing, fulfillment of conditions under court orders and how this case is relevant to others in similar situations.
 

If you have any comments, send us an email at hull.lawyers@gmail.com or leave a comment on our blog.

Paul E. Trudelle – Click here for more information on Paul Trudelle.
 

Rick Bickhram – Click here for more information on Rick Bickhram.
 

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My friend owns a Chrysler dealership, and at the bottom of each of her ads, she includes a note in tiny font suggesting “Wise customers always read the fine print”. Those pondering organ donation in Ontario would be well-advised to follow this same adage. A number of significant changes have been made to the organ donation system in the Province:

• In addition to signing your Gift of Life Donor Card and informing your immediate family members of your choice to donate any/specific organs/tissue, you need to register your consent to donate. If you just carry the paper donor card, your wishes are only known to the extent that you have informed your family and friends. Once you register your consent to donate, your information is stored in a Ministry of Health and Long-Term Care database.
• To register consent, you can either: i) visit an OHIP office when you renew your health card; or ii) download a Gift Of Life Consent Form, fill it out and mail it to the address specified on the form. Online registration may be available at some point in the future.
• As of December 2008, you are no longer able to register a decision of “No” (i.e. No, I do not wish to donate organs/tissue). Only “Yes” decisions are now stored in the OHIP database. It is important to note that as of July 1, 2009, if you had previously registered a decision of “No”, this decision will “no longer be used or disclosed by the Ontario Government to Trillium Gift of Life Network”. Interesting catch-22: Should you choose to not register your consent, are you, by default, regarded as a “No”? The answer, is NO. If you do not register your consent, the TGLN will approach your family to discuss organ donation and your family may consent on your behalf if you are unable to do so.
• Your consent can be withdrawn at any time (again, by visiting an OHIP office, or in writing).

Spain, Italy and Austria all practice ‘presumed consent’ in which organs and tissue are considered property of the state unless one actively opts out. In 2007, the Health Law Section of the Ontario Bar Association, commented that an opt-out regime would be too radical a shift from the existing opt-in regime to garner public support. To wit, in a poll published late last week by Canadian Blood Services, 45% of Canadians were strongly opposed to a ‘presumed consent’ system of organ donation.

There are currently more than 4,000 Canadians waiting for organ donations, and each year, more than 200 die awaiting transplant.

Jennifer Hartman, guest blogger

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Computers have become a staple in the lives of human beings, such that it is difficult to imagine that there was a point in time when they did not exist. In an effort to remain current with technology, some funeral homes have incorporated the use of technology in how loved ones say their final farewells.

The Toronto Star  recently featured an article about a funeral home that allows distant loved ones to say goodbye by watching the funeral service being streamed over the internet. It sounds eerie, and certainly, there will always be concerns about internet security, but for Brantford trooper Larry Zuidema Rudd, who died when a roadside bomb exploded, having an online funeral service allowed more then 40 of his colleagues in Afghanistan to pay their final respects from their distant base.

The so-called “sympathy casts,” have been growing in popularity. Helen Zuidema, the mother of our fallen solider Zuidema Rudd, says that the sympathy casts have “brought our family together without them having to come here … they’re still talking about it months later.” Zuidema still scans the funeral site, along with its many photos, tributes and messages, about once a week.  “It brings back a lot of memories that you kind of forget when you are grieving,” says Zuidema.

For funeral homes, embracing the advances of technology has created an appreciation amongst loved ones, faraway friends and relatives, who can now be included in saying their final farewell.

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We often think of death in terms of the impact it will have on each of us individually. How my grandparent’s death affects my life? Who will I leave my estate to? Stephen Hawking, famed physicist has recently addressed the idea that the human race as a whole may be on the verge of extinction, unless we colonize Space. 

With the planets capable of human inhabitation limited to essentially Mars, our descendants may be actual Martians. And no…I don’t mean that we will evolve into green creatures with large eyes and three fingers instead of five. I mean that they might actually live on Mars.   This isn’t the first time that the concept of space colonization has come up. Hundred of movies and countless novels have toyed with the idea, to no real impact – even NASA has predicted that a human population will one day exist in Space.

The idea that the Earth may not support the human population indefinitely is not new, other astronomers have suggested that the Earth may indeed end up in a ‘death spiral’, ending in incineration of our planet. Rest assured, we have approximately 6 billion years until this is a real possibility. Perhaps the threat of long term survival as a race will spur us into exploration and a global form of Estate Planning.

Have a great weekend,

Nadia M. Harasymowycz - Click here for more information on Nadia Harasymowycz.

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Legacy, and all that it encompasses is often at the forefront of Estate litigation. ‘Dad didn’t want that’ or ‘Mom would have wanted me to have that’ is often at the heart of the arguments we make. It must certainly be prevalent in the minds of testators when they are considering who gets what. One of the most common concerns we see, is ensuring that your children will spend your money in a way that you would have supported. However, I blogged yesterday on the recent trend of the very wealthy to leave their monetary legacy to charity; reinforcing the idea that sometimes, it is not only money that we are worried about, but also a continuation of our ideals, and our intentions to better those around us.   ‘Beautifulpeople.com’ has taken this one step further, the concern now being focused on the physical aspects of your legacy.

BeautifulPeople.com is essentially a dating website, with a twist. You can only become a member through a democratic vote in which some 600,000 people are asked to assess your photo for attractiveness; if the vote says attractive, then welcome; if unattractive, goodbye. Recently, BeautifulPeople.com has launched a new forum on its website for the purpose of finding sperm and egg donors. Donors are of course limited to those who are ‘attractive’.   The founder of BeautifulPeople maintains that the new forum on its website is merely a mechanism by which individuals with fertility issues can find appropriate donors, however, he notes, as reported by the National Post, that “Every parent would like their child to be blessed with many fine attributes, attractiveness being one of the most sought after.”

At first glance, I was incredulous! Really? A website where only beautiful people can find sperm and egg donors? But, alas, the managing director assures that the site is for everyone ‘including ugly people’. In trying to approach this from every angle, I must consider whether it is possible that this is really just another part of your legacy? It seems that in many ways we take steps to prepare our children for all possibilities, trying to give them any edge we can to make their lives better than the ones we had. I suppose, in the midst all this consideration of ‘legacy’, maybe it’s not all money and reputation, but also appearance.

Something to think about,

Nadia M. Harasymowycz - Click here for more information on Nadia Harasymowycz.

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I vaguely remember the first time I saw Warren Buffett’s granddaughter interviewed regarding his intentions to leave the majority of his wealth to charity. I don’t think that I gave it the consideration it deserved. This issue has taken center stage once again with a quick request from Buffett, as well as Bill and Melinda Gates.

Probably known most for their wealth, but also for their generosity, these three trailblazers have asked some of the wealthiest individuals in the United States to pledge to donate most of their fortunes to charity. The intention is not to limit the scope of the request, but merely to start as somewhat of a grass-roots organization and to expand in due course. 

On Wednesday, August 4, 2010, nearly 40 individuals, whose wealth exceeds my imagination, pledged to give away half or more of their fortunes.   This is just the beginning. The Gates family together with Buffett intend to take this global, by meeting with wealthy individuals in China and India in the coming months.   As this pledge is making international news, it’s only a short time before we see it in Canada.

The Canadian impact of such a pledge isn’t fully explored at the moment, and I won’t begin to speculate as to how it will expand north of the border, but the current domino effect can’t be ignored. 

As a general member of society I look at this with admiration and recognize the massive benefits that will be conveyed as a direct result of these actions. Even in light of these benefits, I can’t help but look at this as an estate litigator, and hope that the pledges made are conveyed to family members and that those making the pledge take careful steps to create an estate plan, as without such detail, this could be the beginning of a whole new era in Estate Litigation.

Until Tomorrow,

Nadia M. Harasymowycz - Click here for more information on Nadia Harasymowycz.

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Listen to: Interpreting Ambiguity in a Will or Trust

This week on Hull on Estate and Succession Planning, Ian continues his discussion on what happens when words in a will are not clear and explains the various methods that can be used to seek interpretation.

If you have any comments send us an email at hullandhull@gmail.com or leave a comment on our blog.

Ian M. Hull - Click here for more information on Ian Hull.

Suzana Popovic-Montag - Click here for more information on Suzana Popovic-Montag.

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Listen to: Preservation of Rights in Pending Litigation

This week on Hull on Estates, David Smith and Rick Bickhram discuss rules 40 through 45 of the rules of Civil Procedures, which deal with the preservation of rights in pending litigation and the nature of these remedies in the estates context.

If you have any comments, send us an email at hull.lawyers@gmail.com or leave a comment on our blog.
David M. Smith: Click here for more information on David M. Smith.

Rick Bickhram: Click here for more information on Rick Bickhram.

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We would all like to believe that being buried with dignity is a guarantee, something our loved ones won’t have to stress about in such a difficult time. This guarantee is one that the City of Toronto seems to also believe in. Yet the cost of funerals for those who don’t leave enough behind to cover the costs has been falling on the local funeral business owners, who are now stepping up to ask for greater assistance.

A recent article in the Toronto Star brought attention to this issue, noting that in 2009, 1600 subsidized funerals were held in Toronto, with only a few being held for unidentified individuals, or those with no next of kin. In addition to individuals who fall into these two categories, the City will also subsidize funerals for those who have been on social assistance or provincial disability benefits.

With the average cost of a simple funeral amounting to approximately $5,500, the costs start to add up, particularly when the City subsidy is only slightly over $2,000.    The Toronto & District Funeral Directors, in reporting to councillors, says that the overall costs to the association are between $1.8 million and $3.9 million each year.   Clearly the current subsidy provided by the City is not sufficient to cover these funerals and without an increase in the subsidy, services which we may consider basic will be further stripped down.   The City has countered that increases have been made on a yearly basis since 2008 and there is only so much funding that is available. 

Cities such as Windsor have dealt with similar issues in the past, bumping their subsidy to $3,000 and limiting the services available in these situations. Perhaps such changes will be coming to Toronto, and our perspective on guarantees might need to change.

Until Tomorrow,

Nadia M. Harasymowycz - Click here for more information on Nadia Harasymowycz.

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For some, the name ‘Billy the Kid’ may conjure images of an old western film, likely because that’s how he became a household name. Yet, Billy was a real outlaw in the late 1880s who died at the hands of Pat Garrett nearly 130 years ago. 

A recent article in the Toronto Star notes that a posthumous pardon for Billy the Kid may be in the works in New Mexico. Billy was convicted of murdering a sheriff during the course of a feud between two rival factions of cattle herders, both asserting their right to control cattle lands in New Mexico in 1878.   The legend continues that Billy was held in jail following the feud, but he managed to escape. Pat Garrett chased down bill and allegedly shot and killed him.

In more recent history, some have contended that Billy (although maybe I should say, the “real Billy”) actually got away, and that Garrett killed the wrong man. Garrett’s family has taken issue with these allegations, and the attempts to pardon Billy the Kid.

The pardon has gained favour with some in reliance on the story that Billy had made a deal with law enforcement, wherein he testified against another outlaw in exchange for a pardon. It seems such pardon was never granted.

Garrett’s family, in an effort to uphold their family honour, have commenced a petition against the pardon of Billy the Kid. Some have argued that the pardon is a publicity stunt and others that it is long overdue. Whatever the truth about the deal between Billy and law enforcement, having a legacy worth fighting for is what we all strive to achieve; at least two people who died over a century ago have created such a legacy.

Until Tomorrow,

Nadia M. Harasymowycz - Click here for more information on Nadia Harasymowycz.

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Earlier this week, I came across a funny web page by Marjorie Gottlieb Wolfe. In “Wills, Clauses & Other “Narishkayt”, Ms. Wolfe sets out particulars of certain will clauses of note. (“Narishkayt”, she explains, is the Yiddish word for “foolishness”.)

Ms. Wolfe tells of Mark Gruenwald, a Marvel Comics writer, who in his will directed that his ashes be mixed with ink and used within the pages of a comic book. 4,000 “ink and ashes” issues of Squadron Supreme were produced after his death.

She tells of Portuguese aristocrat Luis Carlos de Noronha Cabral da Camara, who picked 70 random strangers from a Lisbon telephone book as his beneficiaries.

She tells of Onni Nurmi, a Finish businessman who left 780 shares of a rubber boot company to residents of a Finish nursing home. The company went on to become Nokia, and the residents became millionaires. (Another report, here, says that the bequest wasn’t to the residents, but to the town of Pukkila for the “recreation of the people living in the village’s old people’s home”. At one point, the shares were said to be worth $90m.)

In my personal favourite, she tells of Anthony Scott, who wrote in his will: “To my first wife, Sue, whom I always promised to mention in my will. Hello Sue!”

Ms. Wolfe concludes by reciting the saying: “The person who works and saves will someday have enough wealth to divide with those who don’t.”

Visit her web page to see the entire article, and browse other articles by her.

Have a great weekend.

Paul E. Trudelle - Click here for more information on Paul Trudelle.

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Listen to: How to Pursue Recovery

This week on Hull on Estates Chris Graham and Natalia Angelini discuss how to pursue recovery when one thinks that a trustee or fiduciary has absconded with funds.

If you have any comments, send us an email at hull.lawyers@gmail.com or leave a comment on our blog.

Chris M.B. Graham - Click here for more information on Chris Graham.

Natalia R. Angelini - Click here for more information on Natalia Angelini.

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I have previously posted on the doctrine of “mutual wills”. See my Breakfast Seminar, here, and my blog of September 24, 2008, here.

The issue of mutual wills was front and centre in the July 26, 2010 decision of Re Hand Estate, 2010 NSSC 297 (CanLII).

There, Dr. Hand and Ms. Hand prepared wills in 1999. In his will, Dr. Hand conveyed a condominium to his son Richard if Ms. Hand was to predecease him (the condo was jointly owned with Ms. Hand). In Ms. Hand’s will, she provides that the condo is to go to Richard. Because of the joint ownership, this gift would fail if Ms. Hand was to predecease Dr. Hand, as the condo would pass to Dr. Hand by right of survivorship.

Ms. Hand predeceased Dr. Hand. The condo passed to Dr. Hand. Dr. Hand then revised his will, leaving most of his property to a daughter. He also transferred the condo into a trust.

Richard cried foul, arguing that the wills were mutual wills and therefore were subject to an agreement against revocation. Accordingly, he argued that he was entitled to a half interest in the condo.

The court disagreed. The court found that the wills were not “mutual”, and further, there was no agreement against revocation.

As to the first point, the court found that the different terms of the two wills meant that they could not meet the definition of “mutual wills”, which required that the wills contain reciprocal provisions.

Further, the different terms of the will suggested that there was no such agreement, and that the “flexible norm of revocability” applied. 

This conclusion was supported by evidence from the drafting solicitor, who advised Dr. Hand and Ms. Hand that upon the death of the first of them, the condo would pass to the other as the sole owner. This, the court held, raised the issue of freedom of the sole owner to do as he wishes with his property.

Subsequent events did not assist Richard. The fact that for a number of years after Ms. Hand’s death, Dr. Hand continued to provide that the condo would pass to Richard suggested, at most, that the intention remained. It did not provide evidence of a mutual agreement against revocation.

While the court is free to find an implied agreement not to revoke a will, the court will not do so except in the clearest of cases. If parties intend to create mutual wills, with the accompanying agreement not to subsequently revoke the wills, they should do so in the clearest of express terms.

Thank you for reading.

Paul E. Trudelle - Click here for more information on Paul Trudelle.

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What happens if a Will gives a life interest in an estate to A, with a gift over to B, C and D, or their issue alive upon A’s death, and A decides to disclaim her interest in the estate?

This issue was considered in Clarke v. Di Bella, 2010 BCSC 505 (CanLII).

There, the testator made a Will that provided that until the death of the survivor of the testator or A, the Estate was to pay the income and capital, as the trustees may decide, to A. Upon A’s death, the residue was to be divided amongst B, C and D. If any of B, C or D was to predecease A leaving children, then that person’s share would go to their children.

A decided to renounce her gift, and have the residue pass to B, C and D immediately. That is, the gift to B, C and D would be accelerated.

The Public Guardian and Trustee opposed, taking the position that acceleration of the gift was contrary to the intentions of the testator, and that acceleration would disentitle the children of B, C and D from a possible inheritance.

The Court disagreed with the PGT’s position, and allowed the acceleration. It held that from a review of the case law, there were four clear principles that applied:

a.                  Acceleration is presumed unless there is an indication to the contrary;

b.                  In assessing whether there is an intention to the contrary, the court must look at both the instrument and the surrounding circumstances;

c.                  The instrument must be examined in its entirety, and clauses must not be examined in isolation; and

d.                  The intentions must be viewed, as nearly as possible, from what would be the views of the testatrix, applying an objective standard.

While many cases have disallowed acceleration, the court did not feel that the present circumstances prevented acceleration.

The court did, however, agree that the intention of the testatrix was that no beneficiary would receive a bequest before the age of 25, and imposed a restriction on distribution before the beneficiaries turned 25.

Thank you for reading.

Paul E. Trudelle - Click here for more information on Paul Trudelle.

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A Nova Scotia judge recently ruled that a lottery prize was not assumed to be mutual asset to be divided upon the breakdown of a common-law relationship.

The National Post recently reported on a man and a woman who had been living together for a number of years and had won $50,000 on a scratch-and-win ticket. The ticket had been purchased by the man. Notwithstanding the fact that the couple had previously shared winnings, the winnings were deposited into a joint account, and part of the winnings were used for a down payment on a property that they both owned, the court found that there was no prior agreement to share the winnings.

(In another recent Ontario case, the judge found that in absence of cogent evidence of a clear intent to share winnings, there will be no requirement to share.)

Had the couple been married, there would have been a presumption that the lottery winnings were joint.

In Ontario, s. 14 of the Family Law Act creates a presumption that in the case of married spouses, the fact that property is held in the names of spouses as joint tenants is proof, in the absence of evidence to the contrary, that the spouses intended to own the property as joint tenants, and money on deposit in the name of both spouses shall be deemed to be in the name of the spouses as joint tenants. The provision does not apply to common-law spouses.

What are the possible lessons from this?

1. If you are buying lottery tickets with someone else, be they a friend or unmarried spouse, have some agreement in place to share the winnings.
2. As Beyonce says, if you liked it, then you should have put a ring on it.

Thank you for reading.

Paul E. Trudelle - Click here for more information on Paul Trudelle.